While green energy is on the rise, there are casualties of even the most well-intentioned projects. In Center for Biological Diversity v. FPL Group, Inc. (2008) 166 Cal.App.4th 1349, the Court of Appeal, First Appellate District upheld the dismissal of a public trust enforcement action against the owners and operators of wind turbines in the Altamont Pass area (the “Operators”). According to the Center for Biological Diversity (“CBD”), the turbines injure and kill raptors and other birds. Ultimately, CBD was successful in clarifying that the birds are a public trust resource of all the people of the state. However, the appellate court held that the proper party to bring an action against is the public agency with permitting authority, rather than the Operators.

The appellate court first looked at the history and applicability of the public trust doctrine, and offered citations to a number of important U.S. Supreme Court and state law cases describing the nature of the doctrine. California recognizes that certain public resources, such as public lands, beaches, and waterways have mass social value, and that the government should act to protect those resources for the benefit of the public’s future use. Citizens can sue the government to enforce these principles when it violates its duties as “trustee”. In this case, the appellate court determined that the public trust doctrine applies to wildlife as well as to the common waters of the state, citing to historical cases including People v. Stafford Packing Co. (1925) 195 Cal. 548 and California Trout, Inc. v. State Water Resources Control Bd. (1989) 207 Cal.App.3d 585. Importantly, the appellate court reviewed a recent case handed down by the California Supreme Court, Environmental Protection and Information Center v. California Dept of Forestry & Fire Protection(2008) 44 Cal.4th 459 which referred to “two distinct public trust doctrines”—“the common law doctrine, which involves the government’s ‘affirmative duty to take the public trust into account in the planning and allocation of water resources’” and “a public trust duty derived from statute, specifically Fish and Game Code section 711.7, pertaining to fish and wildlife.” The Supreme Court’s ultimate analysis was that private enforcement of the public trust doctrine can be used to protect wildlife, and was not limited to waterways and water resources, as the Operators argued. Therefore, the appellate court held that the birds were protected by the public trust doctrine. The question following then involved who could be sued.

The appellate court then ruled that a claim for breach of the public trust must be brought against responsible public agencies, and not against private defendants. The court said, “The defect in the present complaint is not that it seeks to enforce the public trust, but that it is brought against the wrong parties.” The court first looked at common law trust principals by analogy. “[W]here a trustee cannot or will not enforce a valid cause of action that the trustee ought to bring against a third person, a trust beneficiary may seek judicial compulsion against the trustee.” Saks v. Damon Raike & Co. (1992) 7 Cal.App.4th 419. The court rejected the attempt in this case to create a private cause of action against the Operators for enforcement of the public trust doctrine and limited private enforcement to suits brought against public agencies.

Finally, the court analyzed the resulting policy implications in support of its decision not to extend enforcement of the doctrine to private defendants. It speculated that the impacts of expanding the public trust doctrine would be enormous, leading to duplication of efforts by agencies and the courts, inconsistent standards and conditions being applied to decision-making, improper assumption of administrative functions and interference with administrative decision-making processes. “The courts are available to review the responses of those agencies, but they are not available to supersede their role in the regulatory process.”

The overall ruling appears to both solidify the public trust doctrine’s applicability to the protection of wildlife as a trust resource, and establishes a limitation on the public trust doctrine so that it can only be invoked to sue public agencies charged with oversight of land use projects. In general, the opinion has the potential to spread the scope of litigation challenges to land use and agency regulatory decisions. Certainly, the decision puts big targets on the backs of the public agencies responsible for permitting projects that harm wildlife or other public trust protected resources. It looks like it is open season.

Bill Abbott is a partner at Abbott & Kindermann, LLP, and Nathan Jones is a law clerk for the firm. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.